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ELCDismissedPetition dated 14th October 2015 (amended 10th November 2016)· [2025] KEELC 3123 (KLR)

Bomu & 9 others (Suing on behalf of all the 5190 members of Ihaleni Community Based Organization (CBO)) v Kindimba Limited & 6 others (Petition 15 of 2015) [2025] KEELC 3123 (KLR)

Environment and Land Court
4 April 2025
4,852 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioners, describing themselves as members of the indigenous Mijikenda/Ihaleni community, petitioned for a permanent injunction against eviction, declarations of proprietary rights over Blocks 11, 12, 4236/4, 5023 and 5018 in Kilifi County, declarations that the land is Trust/community land improperly allocated to private individuals, and orders that the National Land Commission apportion the land to the community. They claimed ancestral occupation and historical dispossession by Arabs and colonialists. The 2nd Respondent, Kilifi Plantations Limited, asserted it purchased the land in 1926-1928 and holds freehold titles. The court framed two issues: whether the Petitioners proved proprietary interest and violation of constitutional rights, and whether the 2nd Respondent is the bona fide owner. The court found the Petitioners gave no proof of their forefathers' occupation or of the alleged dispossession, and several admitted they did not live on the land and had been arrested for trespass. The National Land Commission had, after hearing all parties in 2015-2016, upheld the 2nd Respondent's freehold titles and found the historical-injustice claim premature pending enabling legislation. The court held that any challenge to the Commission's determination lay in judicial review, that a trespasser cannot claim violation of property rights in private land, and that the trust land and community land claims were unproved. The petition was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Petitioners proved proprietary/ancestral interest in the suit land

Holding

They did not; claims of ancestral occupation and historical injustice were unsupported by evidence and the NLC had already determined the land to be private freehold property

Reasoning

The Petitioners alleged forefathers occupied the suit parcels but adduced no proof. Some admitted not residing on the land and having been arrested for trespass. The National Land Commission, after hearing all parties, found the parcels were private freehold property of the 2nd Respondent and that claims of historical and ancestral ownership could only be considered under a proposed law on historical injustices. The Petitioners did not challenge that finding by judicial review.

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02

Whether the suit land is Trust Land or unregistered community land

Holding

No; the NLC having determined the property private, the trust land claim does not arise and the community land claim was never proved

Reasoning

The Petitioners sued the County Government on the basis the land was Trust Land held in trust for the community. However, the National Land Commission's reports determined the suit parcels were private land held under freehold title by the 2nd Respondent. The court held that with the land adjudicated private, the trust land claim fell away, and the alternative claim of unregistered community land was not proved by any evidence.

p. 10
03

Whether a party dissatisfied with the NLC's historical land injustice determination can bring a constitutional petition instead

Holding

The proper remedy is judicial review of the NLC process; courts nonetheless retain jurisdiction over particularised historical injustice claims

Reasoning

The court accepted, following the Court of Appeal in Chief Land Registrar v Nathan Tirop Koech, that courts have jurisdiction to determine historical injustice claims whether or not the NLC is seized of the matter. But here the Petitioners had already lodged their grievance with the NLC, which heard and determined it against them; being dissatisfied, their remedy lay in judicial review of that process, not a fresh petition resting on unproved ancestral claims.

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Legal principles established

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  • A claim of ancestral dispossession requires proof of the forefathers' occupation and of the dispossession
  • A party dissatisfied with the National Land Commission's determination on historical land injustice should pursue judicial review of the process
  • A trespasser cannot claim violation of the right to property in private land

Court orders

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  1. 1.The Petition is dismissed with costs to the Respondents
Jurisdiction invoked
Article 67(2)(e) of the Constitution and Section 15(3)(b) of the National Land Commission Act; Environment and Land Court jurisdiction over constitutional land claims

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bomu & 9 others (Suing on behalf of all the 5190 members of Ihaleni Community Based Organization (CBO)) v Kindimba Limited & 6 others (Petition 15 of 2015) [2025] KEELC 3123 (KLR)", Case Analysis (2025). Petition dated 14th October 2015 (amended 10th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3123/eng@2025-04-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.